Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-10-28
SUPREME COURT.
Syn0pses OF Decisions Rendered at The
Present Sitting Of the Supreme
Court at Tyler.
Opinions Handed Down in q Number OF
Long Contested Cases-New
Rulings.
Correspondence of the Gazette.

Correspondence OF the Gazette.
TYLER, TEX, Oct. 26.-State Of Texas
vs.. John NJ. Bender; appeal from Marion.
The state Of Texas having obtained judg-
ment sgainst one Thomas, levied exeCu-
ton upon certain personal property, 81
the property of said Thomas. Appellee
fled claimants bond, claiming the said
property had been sold him by Thomas.
A motion having been made and sus-
tanned at former day of this term to
strike out paper purpOrting to contain
the issues rendered by the state IN the
court below, which said paper claimed to
| be substitute Of the original, because
the necessary steps had not been taken
| to make valid substitution. and
no request having b5en made to perfect
! the record, this court cannot know
what issues were in the court below. The
state claimed, as shown by bill CT Cx
ceptions, th.s the sale Of this property
wGs mEde By Thomas with intend to de-
| fraud his creditors. Where party in the
court below fails to ask Tor an instruction
On given point, he cannot be held to
complain il this court. The paper named
ebove having been stricken out, and the
record not perfected, and this court not
knowing the issue or issues in the court
| oel0w cannot intelligently pass upon the
several assignments OF error. Affirmed.
| StsytOp, j.
Jefferson Lumber Company vs. P NJ.
Williams; appesI from Marion. Appellee
sued appellants upon q prOmissoTy note
| for $720, together with 10 per cent. at
| torney's fees, same being ssipulste in
= % 10
lants admitted the business Of the claim
sued on and rendered the same in court,
but resisting the payment of attorneys
! fees stipulated for, snd also clsimed that
there was a suit in the same court claim
| ing $4,000 damages because OF the
breach OF the contract, part Of the con-
| sideration for the said contract being
| $720 in controversy. This answer on de-
murrer was stricken out. A trial amend
ment to almost the same effect as the au-
swer was also stricken out. Defendants
refusing further to amend, Judgment
was rendered for appellee. Held: The
exceptions and demurrers to the answer
and trial amendment were properly sus-
tanned. Appellant admitted the business
OF the claim sued Cd. The prayer was to
cancel contract which was the subject
matter of another suit in the same court.
If these answers are admissible at all it
would be by plea in recoavention. De-
fendant admits the jastness Of the claim,
and under the stipulations Of
the note to that effect, attor-
ney's fees are recoverable. Defendant
should have paid the note and defended
tie contract, and his failure to do so JUS
titles the plsintif in bringing the suit,
collecting the principal, interest and at
torneys fees. Affirmed. Stsyton, j.
: V. A. Chapman vs. D. Z. McLemore;
appeal from Titus. Appellant rented
land to One Kennedy for tie year 1888,
and furnished him supplies TO make q
crop, amounting TO ebout 500. Appellant
having gin, giuned two bales of Ken
nedy's COTTON, who took samples
and sold same to appellee. When
appellant heard Of this he sent
for appellee and told him that if he would
psy what Kennedy was due him for sup
plies, he would deliver the cotton. This
appellee refused to do. Appellant here
told appellee he would assert his right to
the cotton, end appellee remarked that
appellant had the advantage Of him, and
that he would look to Kennedy for his
money. This cotton was atterWard sold
for SS7 Sd. Appellee brought suit for
this amount and recovered judgment for
the same. The court below tried
the case with the idea that ap-I
pellans had to foreclose his landlords
lien in order to protect himself. Held
This finding WAS error. A landlords lien
cannot be defeated in this way. Admitting
that be had to foreclose the lien, appellee
wonid be estopped from putting In his
clAfm for the cotton because he said he |
A6uld have nothing more to do with the |
Cotton snd would look to Kennedy for his }